BPA Guide to members

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1






BPA Guide to members


Parking Management on private land









Page
2


Contents of the Guide:

1.

Introduction

1.1.

Why
is
this Guide needed
?

1.2.

Relationship between this Guide
and

the BPA
C
ode

of Practice

1.3.

BPA
Exemption from liability statement

2.

Contract Law
and

parking

2.1.

Establishing your contracts

2.1.1.

What is a contract?

2.1.2.

Elements of a contract:

i.

Offer and acceptance

ii.

Consideration

iii.

Terms

2.2.

Your
operating
contract with the landlord

2.3.

Your contract with the

driver

2.3.1.

Who are parties to this

contract
?

2.3.2.

When
might this not be the case?

2.3.3.

How is the transaction of offer and acceptance carried out?

2.3.4.

What is the consideration in a parking services contract?

2.3.5.

Discounts

2.3.6.

Genuine
pre
estimate of loss.

2.3.7.

Assessment of a genuine

pre estimate of loss

2.4.

T
iming
and contractual terms

2.5.

Privity of contract in parking contracts

2.6.

Content of the parking services contract



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3


3.

Trespass


4.

Important legislation

4.1.

Introduction

4.2.

Protection of Freedoms Act 2012

4.3.

Companies (trading disclosures) regulations
2008 SI 2008 /495

4.4.

Business Names Act 1985/companies act 2006

4.5.

The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 2083)

4.6.

Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 1277)


4.7.

Electronic commerce regulations 2002 SI 2002/2013

5.

G
uidance on providing parking facilities for disabled

people

5.1.

Introduction

5.2.

Obligations on public bodies

5.3.

Summary

6.

Dealing with abandoned vehicles

6.1.

Introduction

6.2.

Checking that a vehicle has been abandoned

7.

Identifying the driver where the registered keeper claims
they were
not driving the vehicle

7.1.

Introduction

8.

Protecting vulnerable drivers when carrying out immobilisation or
removal

8.1.

Introduction

8.2.

Who are ‘vulnerable’ drivers?



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4


8.3.

Who are members of the vulnerable drivers group?

8.4.

Who can become vulnerable because of
external circumstances?

8.5.

What priority actions should drivers take to remove or reduce danger or distress
to a vulnerable driver?

8.6.

Risk assessment checklist


9.

Appropriate use of ANPR

9.1.

Introduction

9.2.

ANPR and data
protection

9.3.

Assessing the impact of ANPR on your p
arking operation.

9.4.

Administering your ANPR system

9.5.

Disclosure of ANPR data

9.6.

Retention of CCTV/ANPR images

9.7.

Other operator responsibilities

9.7.1.

Informing people about your CCTV/ANPR system

9.7.2.

Subject access requests

9.7.3.


S
ecurity
I
ndustry
A
uthority

Licensing

10.

Grace
Periods

10.1.


11.

General Good Practice

11.1.

Introduction

11.2.

Liveried Vehicles

11.3.

Uniform

11.4.

Learning and Development



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12.

Signs and Notices

12.1.

Sign
s


12.2.

Notices
and other communications with drivers

12.3.

Model wording

12.4.

11.3.1 Wording that may be used on mandatory entrance signs

12.5.

11.3.2 Terms
and Conditions signs

12.6.

11.3.3 Manually applied Parking Charge Notice (Notice to Driver)

12.7.

11.3.4 Postal/ANPR Parking Charge Notice (Notice to Keeper)

12.8.

11.3.5 Reminder letter (formerly Notice to Owner)

13.

Glossary






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Section 1

Introduction

1.1: Introduction: Why
is this guide needed?

Our members will be familiar with the difficulties experienced by Private landlords

(in
this guide the term landlord will include tenants of the private land in question)
, or by the
members themselves when acting on behalf of private landlords, in relation to non
-
compliance by drivers with the rules which apply to any particular car park.

From time to time, drivers will
park without permission, fail to pay for parking or
park for
longer time than has been paid for, or park in some other ‘unauthorised’ way. However,
unlike on
-
street parking enforcement by public authorities, private land owners
(
have
fewer powers and


delete

this”
)

lack the statutory enforcement regime to
encourage
compliance with their rules.

From time to time, drivers will park without permission, fail to pay for parking or park for
longer time than has been paid for, or park in some other ‘unauthorised’ way. However,
unlike on
-
street parking enforcemen
t by public authorities, private land owners have
access to
fewer powers to
enforce

compliance with their rules

and they must rely on law
relating to contract and trespass. These are complicated areas of law and in this guide
we have attempted to explain why sticking to the Code of Practice is important and how
best to do it.

This guide provides practical advice to

members to improve the effectiveness of the
management of ‘unauthorised parking’ of vehicles on private land.

1.2: Relationship between this Guide & the BPA Code of Practice

Members of the BPA that are
involved in vehicle clamping or removal

where they h
ave
lawful authority
, or the issue of parking tickets on private land must become Approved
Operators and comply with the Approved Operator Scheme Code of Practice, a new
version of which
was

revised and published in
August

2012, and is enforced from 01
st

O
ctober 2012
. The Code sets out minimum standards and the BPA has a regime in
place to monitor compliance.

This guide is intended as a practical handbook setting out a methodology to be used on
a day
-
to
-
day basis by operators, when setting up or reviewing
the parking management
schemes under their control. It is a reference work, and is complementary to the
objectives and usage of the Code.

It will not be used to enforce the AOS Scheme of
Sanctions.

1.3: BPA Exemption from liability statement



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In drawing up

this guide, the BPA has
endeavoured

to act with reasonable care and skill
in its preparation. However the BPA excludes all liability for any loss sustained by
members or third parties as result of them complying with this guide. Whilst
it is
recommended t
hat
members comply with this guide,
it

should not be considered as a
replacement for relevant legislation. Members should familiarise themselves with all
appropriate legal provisions and ensure that these are followed.




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Section 2 Contract law
and

parking

2.
1
: Establishing your contracts

In managing parking schemes on private land, operators generally act within the
parameters of two separate contracts
:

1.

A

contract with a landlord to manage and operate the parking scheme on
their
behalf
.

2.

A

contract with a mo
torist to provide facilities to park in a car park.

These two contracts set out the authority for an operator to act in a particular way, so it
is important that each contract is clear and legal.

Before describing the essential elements of these particul
ar contracts, we have set out
here some basic contractual principles, which operators should note.

T
o establish parking contracts with drivers
,

us
e

clear
signs and notices as part of your
day
-
to
-
day operations. This is because having a contract in place will give the driver,
you, and the landlord on whose behalf you may be acting, the greatest degree of
certainty about the relationship that is being created

when the driver parks on private
land. This certainty will lead to:



better relations with drivers



speedier resolution of disputes

and



an overall improvement in the relationships between all parties in dealing with that
scarce and valuable resource


a private parking space.

2.1.1
What is a contract?

A contract is a legally binding agreement between two or more parties. Contracts do not
need to be written down: they can be made by the spoken word, in writing or by a
combination of both.

Generally, only the parties to a contract can enforce it. So in a parking management
contract you may need to:



establish that you are authorised to ente
r into contracts for parking

or



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demonstrate that the motorist has made an agreement with you rather than, for
example, with some other organisation or individual (such as the landlord).

A contract must contain certain key elements.

2.1.2
Elements of a co
ntract:


i)

Offer and acceptance


O
ne party (the ‘offeror’)
must make

a clear and definite offer to enter into an agreement
with the other party (the ‘offeree’). When the offer is unconditionally accepted by the
offeree a contract is formed at that moment. U
p until the point of acceptance there is no
contract. See below for examples of offer and acceptance in a parking context.

ii)

Consideration

In any contract, there must be ‘consideration’


something given up by each party in
exchange for the benefit they rec
eive. Typically, in a contract, one party receives goods
or services in exchange for payment to the other party. The consideration by one party
is the handing over of the money

for example
, and by the other party the handing over
of the goods or the
carrying out of the services. This can clearly be applied to many
parking situations when the driver pays for the right to park for a given period.

iii)

Terms

A contract will contain obligations on both parties which define the extent of their
respective duties
. These obligations are often set out in writing in the contract, or are
spoken, or may be a mix of spoken and written terms. The contract terms for parking
services will usually be written on signs that drivers can see before they accept the offer
of park
ing services and enter into the contract.

Some terms will be ‘implied’ by the circumstances. So although they are not written on
signs they will still be part of the legal agreement. Also, terms can be inserted into the
contract as a result of legislation.

This will be considered in detail in section 4.




2.2

Your Operating contract with the
landlord



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Operators may offer parking services on private land only if they have established
the right because they own the land, or have the landowner’s permission.
These
rights will arise from
different circumstances depending on the relationship between
the operator and the land or landowner. One

of the following circumstances

may
apply (these scenarios are non
-
exhaustive)
:

Scenario 1: The operator owns the land him
self outright as the freeholder, or has
taken a lease of the car park and as a tenant is occupying the land and therefore
effectively has similar rights of ownership as the freehold owner.

Scenario 2: The operator has a management service contract with the client
landlord. The contract may require the operator to provide various services on
the land including cleaning, security, and maintenance of the lighting and
management of the vehicles

parked in the car park. In such a contract the
operator will usually invoice his client for his services and any income received
(for example, from parking services) will belong to the landlord.

Scenario 3: The operator has an agreement with the landlo
rd in which the
landlord assigns

some or all of

the rights to operate the car park to the car park
operator. In this case the operator
may

be contracting directly with the drivers on
his own behalf. He will be acting as the principal in the contract.
Th
e
relationship between the landlord and the operator may vary in this scenario,
from the landlord purely paying a premium for the operators’ services, by paying
a fee for the erection of signage, or by sharing a portion of the income with the
operator, for

example.

It is important to be clear about such terms and conditions

when setting up a parking
management contract with a landlord.

The general rule is that the principal and not the
agent can take steps to enforce a contract
. If the parking operator is m
erely acting on
behalf of the landlord then normally the operator is acting as an agent. In these
circumstances the parking operator has no rights to recover the debt and it is for the
principal (ie the landlord) to do so.


If you have been granted full pa
rking management
rights you
should ensure

that:




the property is clearly defined (preferably on a map)

and



the landlord with whom you are contracting has ‘possession’ of the land.



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For example, the landlord may have granted tenancies to one or more reta
il operators.
If so, you need to make sure that the parking rights have not been transferred to the
tenants as part of their leases. If these rights had been transferred to the tenants, then
they would be ‘in possession’ and would be the only parties able
to grant you the
parking rights. In law, the landlord would have ‘assigned’ those rights and would no
longer be able to assign them again to you.

2.
3

Your contract with the driver

The most important contract for operators to focus on is the contract that they wish to
establish with the driver.
W
hilst PoFA has introduced some changes regard
ing

liabilities
for payment,
it is
still
the
driver

who is the contracting party
in the first
instance
.
However
the
operator may obtain outstanding parking charges from the
keeper
if they
do not
provide a serviceable name and address for
the driver
.
When pursuing
outstanding charges, n
otices that are sent to the registered keeper should make clear

the date and time of the
incident and

should
point out to

the keeper
that they
are
invited

to
disclose the details of the driver to you
.
If the
name and/or address supplied is not
serviceable in any way
, then you are allowed to
obtain outstanding charges from
the
keeper.


It is important to remember though that if you are given a serviceable name and
address for the driver, you must use this information. It is unlawful for you to
pursue the keeper of the vehicle if you have a ser
viceable name and address for
the driver

Applying the contractual principles set out in section 2.1, we will dissect the parking
services contract into its parts.

2.
3
.1 Who are the parties to this contract?

In most circumstances the parking operator is the

offeror in the contract

and the driver is
offeree
.
The

offeror
is providing

parking and related services. That offer is then
accepted by the driver of the vehicle



the offeree
.

2.3.2
When might this not be the case?

If you have a managed service contract with the landlord, and the landlord has not
assigned to you
any

rights to the income from the contract, then the ‘offeror’ will in fact
be the landlord. They will be the ‘principal’ in any contract with the motorist,
and you will
just be an agent. In the event of non
-
payment, only the principal is able to enforce the
contract. A dispute

about this question will add considerably to the costs of recovering
unpaid charges. We therefore strongly advise you to make sure you
r client knows that,


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12


if non
-
payment leads to legal action to enforce the contract, you must have been
assigned

the necessary power

to act on your own behalf

in the contract between you
and the landlord

or otherwise the landlord will be responsible for the
legal enforcement
action.

Sometimes the driver may claim to be an agent, and therefore not the offeree under the
contract. They may be acting for their employer, who may own the vehicle, or for
somebody else.
However someone ac
ting for their employer will

be

authorised to enter
into contractual arrangements with a supplier (offeror)

as an agent
; for example buying
fuel using a fuel or company credit card is a contractual arrangement


the offeror
supplies fuel and the offeree agrees to give consideration (
i.e. payment) for such
supply.

An additional question arises when parking operators are trying to identify drivers and
their source of information is the DVLA database. This will reveal the registered keeper,
not the driver.

2.
3.3

How is the transaction of offer and acceptance carried out?

This will depend upon the facts of the case. Remember that the act of acceptance
completes the process of agreeing the contact: up until the point of agreement, the
contract is incomplete and t
herefore not enforceable. The exact moment of contracting
is
important;

as it is at that instant the terms of the contract are fixed. It is not usually
possible to introduce new or additional contractual terms after the point of acceptance.

There are ma
ny
scenarios where differing methods of enforcement are used, and we
would suggest that where you have doubts you take legal advice on the model that you
use in relation to your specific car park and your ability to enforce against drivers in that
specific

scenario.

2.3
.4

What is the consideration in a parking services contract?

The offer to provide a parking space is the key consideration passing from the offeror,
that is to say, from the parking services operator.

However, both parties must provide consid
eration in a contract, not just the offeror.
Usually the offeree's agreement to pay for parking service will be the other half of the
bargain.

When no payment is required from the driver,
there will

be

another
obligation on the
driver
that
amounts to consideration. This consideration does not have to be in money
terms, and in some cases could be quite a minor duty on the driver. It is arguable, for
example that the obligation to stick a timed ticket inside their windscreen could be


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interpret
ed as the driver’s consideration, even without them having had to pay for the
ticket. In a retail park where use of the car park is free to customers, the driver’s
consideration is their promise to ‘be a customer’ and that they will do this by entering
ret
ail premises of one of the park’s retailers in exchange for being allowed to park.

It
could

also be argued that in a retail park or supermarket where there is a maximum
stay time, the consideration could be the Charge Notice that the driver agrees to pay

if
they stay for longer than the maximum period.

2.3.5 Discounts

When you issue your parking tickets, the Code states that you must offer a discount for
prompt payment, and that discount must be at least

by

40%

of the face value.

It is important that you
offer a discount, because
this will give the motorist an incentive
to pay at the lower rate: it will lower your administration costs and ensure that your
amount of outstanding debt is lower.

In addition, a 40% discount for early payment may encourage driv
ers not to frivolously
challenge the parking charge notice,
or
to subsequently try to use the independent
appeals service: a lower discount rate could result in more motorists
challenging parking
charges and using

the independent appeals service

where they

may not have a
legitimate reason
, because there is relatively little difference between payment at the
discounted rate and payment at the higher rate.

2.3.
6

Genuine
pre estimation
of
loss
(GPL)

It is a basic principle of the law of contract that the courts will not uphold ‘penalties’ for
breach of contract. The parties to a contract may agree at the time of contracting that, in
the event of a breach, the party shall pay a sum of money to the othe
r. If this sum is a
genuine pre estimate of loss which is likely to flow from the breach then it represents
liquidated
damages and

is recoverable without the necessity of proving the actual loss
suffered. If this is not the case the payment will be held to

be a penalty, because the
sum will be seen to be extravagant in relation to the losses incurred by the operator.

This principle follows with the issuing of Parking Charge Notices. The charge must be
reasonable and not excessive and

regardless of the amoun
t that you charge, it

must
reflect the genuine pre estimate of loss that you suffer.
We would not expect this charge
to exceed
£100
, but where your charge does genuinely exceed this cost you
must

apply
to us to request an assessment of your charge

before
you use it
.
As a Code Owner
we
have

a legal responsibility under Consumer Protection Regulations to ensure that the
parking charges levied by operators are fair and reasonable, and not excessive.
As


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mentioned above, we consider

£100 to be a fair and reason
able charge, and we have
been advised by the Office of Fair Trading (OFT) that a charge that is offered above this
advisory limit should be assessed in terms of its fairness. The higher above £100 the
charge is, the less likely it is to be fair, according
to the OFT
. (Anything positive from
OFT that could be added here?)

2.3.
7

Assessment of genuine pre estimate of loss

General principles of Fair Business Practice

The AOS sought advice from the OFT about fair assessment of loss resulting from
breaches in par
king contracts on private land

When carrying out an assessment of a
Parking Charge,
there will

be
an
aware
ness

of the following principles of fair business
practice, asking if
the

charge satisfies the following principles:



That the charges should be limited to covering
your

costs. Charges should be set
out clearly and fully as a part of the process

to recover the parking charge
.



That there should be transparency in all dealings with the motorist, with early
disclosure of key

terms and conditions (including rates and charges).



That the contract terms are fair and clear, that they are in plain and intelligible
language and that they are easily understood by the motorist.



That
you

ha
ve

forbearance towards
the
motorist who is
experiencing difficulties,
ensuring that they have sufficient opportunity to discuss their situation.



That
you take

proportionate action on outstanding charges, with due
consideration of all options available.



That
you

take reasonable steps to ensure that
other intermediaries who regularly
act
on your

behalf do not engage in unfair business practices or act unlawfully.



That
you do

not act in any way which is deceitful, unfair or improper, whether
unlawful or not.


Applying the test of fairness

The applicati
on of this test is based upon the view that a court is likely to regard whether
a charge is likely to enable
you

to recover more than the damages which would be
awarded at Common Law in the event that the motorist had been individually sued.
Therefore the
charge should:



Reflect a reasonable pre estimate of the limited additional administrative costs
which occur as a result of the enforcement process and which can be identified
with reasonable precision.



Reflect a fair attribution of those costs.



Be based on

a genuine estimate of the total number of expected Parking Charge
Notices issued in a 12 month period.



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Treat costs other than those limited additional administrative costs as a general
overhead and disregard them in the calculation of the charge.

It shoul
d be stated at this point that only a Court can ultimately determine that a charge
is unfair or excessive, and would use the Unfair Terms in Consumer Contract
Regulations 1999 (UTCCR) for guidance.

As mentioned before, a genuine pre estimate of loss is ca
lculated as arising from the
limited additional administrative costs arising from the process of the charge. Costs may
be included if they are foreseeable, if they can be specifically identified and defined, and
can be reasonably attributed to the enforcem
ent process.

These costs may include:



Costs which are directly attributable to the enforcement action.



Staff costs



Premises



Telephone



Letters and postage



IT systems and support



Depreciation of assets related to the enforcement process.



Human Resources



Overheads that are shared with other functions of the business that has a
substantial association with carrying out the enforcement process.



General costs associated with the membership to the independent appeals
service

This is not an exhaustive list, and

you may find costs presented that are similar in
nature to those mentioned above.

Costs that should not be included

Guidance from OFT considers that the following should not be included in the
assessment:



Debt Collection Agency costs


which will be recov
ered by the agency
themselves.



Fraudulent costs


where motorists intentionally give false information and

the
operator

incur
s

extra costs. It is not considered to be fair to pass these costs to
the general public.



Capital costs


such as the additional co
sts of debt and equity financing.



Inflated administrative costs


for example if a barrister is employed to pursue
certain charges.



The
individual
costs attributed to

a specific appeal that has been sent to

the
Independent Appeals Service. It is not reason
able to include these specific costs


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16


as a loss incurred through the whole operation
, because it is not the intention of
Government that the motorist will pay for the appeals service
.


In calculating your genuine pre estimate of loss, you must also be aware

that you have
a duty to mitigate your loss, and courts may well ask to see evidence of this. For
example, it is not acceptable to inflate administrative costs to justify your genuine pre
estimate of loss. Drivers may well challenge these figures if they a
ppear to be
excessive.

If the assessment of the charge proves to be in excess of the advisory limit, and is
proven to be unreasonable and excessive,
we will

notif
y you

of this and ask

you

to
revisit
your

costs. Should
you

refuse to do this, then
you

should be
aware

that this
would be sanctionable under clause 19.5 (in England and Wales) or clause 33.1 (in
Scotland and Northern Ireland) and that
10

points would be issued

for Sanction
5.15
-


Exceeding the recommendation for parking charges, without th
e approval of the BPA

.

2.
4

T
iming and contractual terms.

We have seen that the moment of accepting the offer gives rise to the contract, and at
that moment the terms are fixed. This is important where there is a dispute about what
the terms of the contra
ct are: for example, whether the requirement to pay an excess
parking charge for an overstaying parked car is part of the contract.

The location of the signage alerting the driver to the contractual terms is critically
important here. If the driver can onl
y learn about particular terms such as the existence
of an excess charge after accepting the contract, those terms will not be included in the
agreement. The case law on this topic is extensive. From a practical point of view,
operators should ensure that
important terms such as those concerning excess
charges, parking charge notices or the existence of a clamping or removal scheme are
clearly and obviously referred to on signs before the driver accepts the offer to park.
This usually means giving the drive
r sufficient notice before the driver is in a position
where they cannot change their mind and go back: they must still have the opportunity
not to enter into the contract.


Warning notices on tickets received by the driver at the time of entering the car
park will
be too late. The car park operator must do enough to give notice of the contractual
terms to the driver in advance of the contract being formed. It appears that the more
unusual or onerous the terms, the more clearly and explicitly notices must
be pointing
them out. Only if the operator were able to show that the driver ought to have known


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about the terms (perhaps because he regularly parked in the car park) might a more
relaxed view be taken by a court about what was necessary to include on the
external
signage.

2.
5

Privity of contract in parking contracts

A fundamental rule of common law is that only the parties to a contract can enforce it.
This is the legal concept of ‘Privity of contract’. An exception to this rule is where one
party to the c
ontract does so on behalf of another, and therefore acts as his agent. The
principal is the real party to the contract, and only he can enforce it.

One aspect of the Privity rule is that a contract cannot impose obligations on a third
party who was not a
party to the agreement. This rule has clear relevance in a contract
for parking services, where a parking operator wishes to identify the driver but only has
access to the DVLA

registered keeper database
. This register will tell him the name of
the vehicle

keeper but will not identify the driver. There is no contractual obligation on
the registered keeper because in respect of the parking services contract the keeper will
not be a party to it. He will be a ‘third party’ and will therefore not bound by the
c
ontract’s terms, unless he was also the driver
-

in which case he will be bound, as he
will have been one of the two contracting parties
.
(This needs to be balanced by
referring to keeper liability under PoFA2012)


2.
6

Content of the parking services cont
ract

The content of the contract for parking services needs to be expressed clearly as it is
this content which the operator will seek to rely on if they wish to take subsequent action
to enforce the terms of the contract. The BPA recommends that operators incl
ude
express terms in their parking contracts, and that these terms be included on signs
visible to motorists before
the contract is formed
. These signs should be displayed
throughout the parks at locations where drivers can read them easily. Operators
econ
omise on signage at their peril!

(This last sentence is negative and should be
removed)

Signage

and notice

contents and recommendations are set out in Section 10.

Section 3

Trespass

Whilst the majority of parking on private land can be enforced under the
formation and
breaking of contract terms, there are certain scenarios where this would not apply,


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18


particularly
i
f

the motorist is explicitly not invited to park on the land. In this case the
motorist is a trespasser and would be committing the Tort of
Trespass.

Although the definition of trespassing can vary from a civil to a criminal offence
depending on where the act of trespassing takes place, the basic definition of the legal
term remains the same. Trespassing is the legal concept of intruding on an
other
person’s property that you do not have permission to be on.

Although trespassing is no longer considered a criminal offence for the most part in
England, up until 1694 trespassing was considered a criminal offence with a fine issued
for the
B
reach
of

the P
eace. Now the only cases in England when trespassing is
considered a criminal offence is
where statute law exists relating to

trespassing and
forcible entry, or being on dangerous ground such as railway properties.

So if a driver parks on private lan
d where he has not been invited to park or given
permission to park he would be trespassing. In some situations


a private road for
example


it would be necessary to use the law of trespass to recover damages. The
law of contract is not applicable in sit
uations like this. Signage indicating that the land or
property in question is private and that parking is not allowed there should be clear and
positioned where it can be seen by drivers. As with pre estimates of loss for parking
contracts, claims for dam
ages resulting from trespass should be fair and reasonable.

Section
4

Important legislation

4.1 Introduction

This section of the guide deals with three areas of legislation (companies, consumer
and electronic commerce), which operators must take into accou
nt in running their
business. Each imposes obligations or restrictions on what trading organisations, such
as parking operators, must do.



The Protection of Freedoms Act bans the acts of clamping and removal in
England and Wales where there is no lawful
authority. It also provides a process
in Schedule 4 to allow the operator to pursue the registered keeper of the vehicle
if they are not provided with a serviceable name and address for the driver.



The Companies (trading disclosures) regulations 2008 impos
e obligations on
companies on displaying their registered names and other details in places
where they do business, as well as in certain documents.



The Business Names Act 1985, now replaced by sections in the Companies Act
2006, impose rules on the use of

unregistered trading names



Page
19




The Unfair Terms in Consumer Contracts Regulations 1999 require that
consumer contracts do not include unfair terms, such as excluding liability for
negligence which causes personal injury. Operators must also not include a
requ
irement to pay disproportionately high sums in compensation for failure to
comply with the terms of the contract.



The Consumer Protection from Unfair Trading Regulations 2008 impose
additional obligations on businesses dealing with consumers


for example
,
operators will need to include identity of the operator, a geographical address in
the contract and act in accordance with time limits . These regulations also
impose a ban on misleading and aggressive practices.



The Electronic commerce regulations 2002

impose obligations on organisations
that are trading on the internet, including information that must go into websites
and during transactions online.


4.2 The Protection of Freedoms Act 2012

The Protection of Freedoms Act is a piece of legislation, passe
d by the Coalition
Government in order to return ‘freedoms’ to the British public that they feel have been
eroded or removed over time through the implementation of other legislation. It deals
with a wide range of issues including reforms of the Criminal R
ecords Checks and
storage of DNA data but the element which relates most to the parking industry is a ban
of vehicle clamping and removals on private land without lawful authority.

‘Lawful authority’ applies in cases where specific legislation is in force
which allows for
vehicles to be immobilised or removed.
These include

public roads, where Road Traffic
Regulations apply, and those statutory authorities such as the police
, VOSA

and DVLA
(and their agents)
retain the ability to clamp
.

However, there are a
lso parking areas where particular by
-
laws have been created that
provide for parking enforcement. A good example of this is some railway station car
parks. Under the Railways Act 2005, the Secretary of State made
allowed r
ailway

operators to create

by
-
laws which allow for vehicles to be immobilised or removed in
certain circumstances.

There are many other organisations and public bodies which can establish ‘lawful
authority’ through Acts of Parliament and local by
-
laws and these include airports,
ports
and harbours, strategic river crossings as well as some common land. Any terms and
conditions imposed by a landowner do not normally in themselves establish lawful
authority.



Page
20


A result of
the introduction of the Protection of Freedoms Act has been the

addition of
Schedule 4, which enables the private car park operator to
obtain any outstanding
charges from
the keeper of the vehicle, if the keeper is unable
supply

a serviceable
name and address for

the driver.

For more information about the Protection o
f Freedoms act, Schedule 4 of the Act and
keeper liability, please consult your Code of Practice 2012, or click
here

to view our
FAQ’s about this subjec
t.


4.
3

Companies (trading disclosures) regulations 2008 SI 2008 /495

These regulations require companies to display details of their registered office and
registered name in a number of places.

Details are as follows:



Companies must display the registered

name at locations where they carry on
business.



They must display their registered name at the registered office.



When they display their registered name and other details, these must be legible
to the naked eye.



The registered name must be positioned so
that it may easily be seen by any
visitor.



The registered name must be put on business letters, notices, official
publications, invoices, other demands for money, receipts and all other forms of
business correspondence and documentation.



The registered nam
e must appear on company websites.



Additional particulars are required on business letters, order forms and websites.
These include stating the part of the UK where the company is registered, the
address of the registered office and the company’s registere
d number.



When a written request is made to the company for details of its registered office
by somebody the company does business with, it must supply the registered
office address and other details about company records and where they can be
inspected, w
ithin five working days of receiving the request.

Operators must bear in mind that any car park at which they are providing a
management service will be the location at which they must display the registered name
in the way prescribed by these regulations.

In addition, much of the correspondence an
operator has with a registered keeper following non

payment of a parking ticket (such as
the Notice to Owner) will come under the rules set out in the 2008 regulations.



Page
21


4.
4

Business Names Act 1985/companies act
2006

This legislation is relevant to operators where they are trading under names which are
not their registered or corporate names. So for example, where a company registered
as John Smith Ltd. trades as “Smart Parking” the legislation would apply. The sa
me
rules apply to an individual who trades under a name which is not his or her surname or
to a partnership which trades under name which does not include all of its partners. In
these circumstances, various items of information must be disclosed, includin
g the
corporate registered name or the names of each partner or the individual person's
name. In relation to each person named, there must be an address at which documents
could be served.

The required information must be shown in a number of places includ
ing any place
where the operator carries on business or where they deal with customers and
suppliers. It must also be shown on business correspondence, on websites and on
invoices, receipts and written demands for payment of business debts. The business
in
formation must be displayed in a prominent position so that it can be read easily.

Two sets of regulations apply to consumer contracts that need to be taken into account
by operators.

4.
5

The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 208
3)

contain provisions designed to protect consumers from unfair contract terms. Terms
which are held to be unfair will not be binding on the consumer (unless they have been
individually negotiated with the consumer). Under the regulations, a term is ‘unfai
r’ if,
contrary to the requirement of good faith, it causes a significant imbalance in one party's
rights or obligations under the contract, to the detriment of the consumer.


Terms may be regarded as being unfair if their purpose or effect is to:




force a consumer who does not fulfil their obligations to pay a disproportionately
high sum


or




irrevocably bind a consumer to terms that they had no real opportunity of being
aware of before the contract was agreed.


You therefore must consider whethe
r your parking charges risk falling into either of
these categories.




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22


If the terms of a contract are in writing, they must also be in ‘plain, intelligible language’.


Some terms do not fall under the assessment of ‘fairness’ (as long as they are in plain,

intelligible language). These are terms covering:




the definition of the main subject matter of the contract


or




the adequacy of the price in relation to the goods or services supplied in exchange.


4.
6

Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 1277)

You must also consider these regulations which prohibit unfair commercial practices.
The regulations state that a commercial practice is unfair if it:



contravenes the requirements of

professional diligence and



materially distorts or is likely to materially distort the economic behaviour of the
average consumer with regard to the product or service or



if it is a misleading action, misrepresentation or omission,



or is aggressive, or




if it is listed in schedule one to the regulations

(see Appendix below)
.

Prohibited, misleading or aggressive commercial practices must impact the consumer in
relation to “transactional decisions “. These include any decision taken by a consumer,
whether it is to act or to refrain from acting concerning:



whether, how and on wh
at terms to purchase, make payment in whole or in part,
retain or dispose of a product or




Whether, how and on what terms to exercise a contractual right in relation to a
product.

A commercial practice can be a misleading action (and therefore unfair) if

a trader fails
to comply with a


commitment contained in a code of conduct which the trader has
undertaken to comply with and the trader indicates in a commercial practice that they
are bound by that code of conduct, and the commitment is firm and capable

of being
verified, it is not aspirational, and it causes or is likely to cause the average consumer to


Page
23


take a transactional decisions they would not have taken otherwise, taking account of its
factual context and if all its features and circumstances”
. Th
is means that for example
parking operators who sign up to the British Parking Association's AOS code of practice
and then fail to comply with the terms of the code, maybe at risk of breaching this part of
the 2008 regulations.


A commercial practice will
be a misleading omission, and therefore unfair, if it omits
material information or provides material information in a manner which is unclear,
unintelligible, ambiguous or untimely and as a result causes or is likely to cause the
average consumer to tak
e a transactional decision they would not have taken
otherwise. The concept of ‘material information’ is defined and can include the identity
of the trader such as his trading name and his geographic address, the price including
any taxes or the manner in
which the price is calculated. This definition could apply to
an operator’s signage in a car park.

The commercial practice is aggressive, if (a) it significantly impairs or is likely to
significantly impair the average consumer's freedom of choice in relat
ion to the product
or service through the use of harassment, coercion or undue influence and (b) thereby
causes or is likely to cause the consumer to take a transactional decision they would not
have taken otherwise.

In determining whether a commercial pr
actice uses harassment, coercion or undue
influence account shall be taken of its timing, location, nature or persistence, the use of
threatening or abusive language or
behaviour
, the exploitation by the trader of any
specific misfortune or circumstance of

such gravity as to impair the consumer's
judgment of which the trader is aware, to influence the consumer's decision with regard
to the product, any onerous or disproportionate non
-
contractual barrier imposed by the
trader, where a consumer wishes to exer
cise rights under the contract, including rights
to terminate the contract. Any threat to take any action which cannot legally be taken
could also be deemed to be aggressive.


Commercial practices
that can be seen

as unfair, include claiming to be a signa
tory to a
code of conduct when the trader is not a signatory; displaying a Trustmark, quality mark
or equivalent without having obtained the necessary authorisation; and claiming that the
trader, including his commercial practices, or a product has been ap
proved, endorsed,
or authorised by a public or private body when the trader, the commercial practices or
the product have not been approved, endorsed, or authorised. Any of these practices
could be relevant to an operator making false claims about his memb
ership of the BPA
or of the approved operator scheme.



Page
24


‘Misrepresentations’ are essentially false statements. They are sometimes called mis
-
statements.


A fraudulent misrepresentation is a statement of fact made without belief in its truth

either

recklessly, knowingly or without caring whether it is true or false


with the
intention that it should be acted on, and it is in fact acted on. Contracts that a
re based
on misrepresentation can be overturned. The offeree may also seek payment of
damages, if any.


It is misrepresentation for an operator to claim or imply that the parking control and
enforcement work they are doing is carried out under the statuto
ry powers of the police
or some other public authority. It is also a breach of the code of practice. It is also
misrepresentation if an operator does not give clear information to the public about
which parking activities are allowed and which are unauthor
ised.



4.
7
Electronic commerce regulations 2002 SI 2002/2013

These regulations apply to websites which provide commercial services and as such
include any website operated by a parking operator, which allows drivers to make
payment.

The regulations requir
e the provision of certain information included in the name of the
service supplier, geographic address of the establishment, an e
-
mail address, the
registered details and registered number contained at Companies House (if applicable),
VAT number if applic
able, any pricing and discount schemes, the codes of conduct the
operator subscribes to (such as the BPA, AOS code of practice) and any terms and
conditions.

Section
5

Guidance on providing parking facilities for disabled

people

5.1 Introduction

There are no specific requirements to provide disabled parking in private car parks.
However, the
Equality Act 2010

impose
s

obligations of a general nature on service
providers which parking operators must be aware of.

It is unlawful for service providers
(which includes operators) to treat disabled people
less favourably than others for reasons relating to their disability, unless such treatment
can be justified. In most circumstances, service providers must make reasonable
adjustments to remove any barrie
rs
-

physical or otherwise
-

that could make it difficult
or impossible for disabled customers to use their services. Service providers do not


Page
25


have to make adjustments to make their services more accessible to disabled people if
this will lead to a breach
of any other legal obligation that may apply to them. However,
these will be exceptional circumstances that apply only were the other legal obligations
are very specific and leave the service
provider
no choice but to act in a certain way.

Most services ar
e covered by the
Equality

Act. Anyone who provides a service to the
public or section of the public is a service provider. There are a few exceptions: private
clubs that have a meaningful selection process for members; transport, but only the
transport veh
icle, not everything else connected with it such as stations, airports and
booking facilities; and education.

The service doesn't have to be impossible to use before the provider has to make
changes. They also have to make changes when it's unreasonably di
fficult to use the
service. They should think about whether any inconvenience, effort, discomfort or loss
of dignity a disabled person experiences in using the service would be considered
unreasonable by other people if they had to endure similar difficult
ies.

Some of the factors that service providers may have to take into account when
considering adjustments include:



whether taking particular steps would overcome the difficulty that the disabled
person faces in accessing the service



How practicable it is

to take these steps.



The financial and other costs involved.



How disruptive it would be.



How much money and other resources they have available.



How much they have already spent.



What financial help is available to them?

Once a service provider has
identified the physical features that may make it difficult for
the disabled to use their service then the law gives them a choice. They can remove the
feature, alter it to find a way of avoiding it or provide the service in another way.

5.2
Obligations on

public bodies

Public service providers have a duty to ensure that everyone has
equal

access to their
services regardless of disability, race, gender, belief religion or sexual orientation. It also
applies to anyone providing services on behalf of a public authority, because that
service has been contracted out.

Example: A hospital dedicat
es parking spaces close to its entrance doors for use only
by people who use wheelchairs or those with other mobility issues. Non
-
disabled people


Page
26


and disabled people without mobility issues might also want a parking space. The extra
distance they must walk

may be an inconvenience. However, people with mobility
issues face a degree of disadvantage compared to others if they do not have dedicated
parking. They may be unable to work for the authority or access the service without the
more
favourable

treatment
of dedicated parking facilities.

The disability equality duty was introduced into legislation in the Disability Discrimination
Act amended in 2005
, and superseded by the Equality Act in 2010
. It means the public
bodies must have due regard to the need:



To
promote equality of opportunity between disabled persons and other persons.



To eliminate discrimination that is unlawful under the act



To eliminate harassment of disabled persons, that is related to their disabilities.



To promote positive attitudes towards

disabled persons.



To encourage participation by disabled persons in public life, and



To take steps to take account of the disabled person's disabilities even where
that involves treating disabled persons more favourably than other persons (for
example, th
e provision of an accessible parking bay near a building where
parking is not available for other visitors or employees).

Example a)

A hospital which charges for parking, may decide that disabled service users are not
required to pay as they may have diffi
culties in accessing public transport, which other
service users may have easy access to. The hospital also recognizes that the dedicated
disabled parking bays have controlled access to eliminate abuse of this parking by non
-
disabled people. More
favourabl
e

treatment is necessary in this case to provide equality
of access to health care at the site.

Note the Act does not prohibit or restrict positive discrimination in
favour

of disabled
people. This is because the disability discrimination act only protects

disabled people
against discrimination, and not those who are not disabled.


Example b)

A disabled student needs a dedicated car parking space because he is unable to use
public transport. Nondisabled users also want parking spaces, but they will not suff
er
the same degree of disadvantage if they do not get one. The disabled student will be
unable to attend the course if he does not have the space whilst the nondisabled
student will merely be inconvenienced. More
favourable

treatment is necessary in this
i
nstance to provide equality of access to the course.

5.3
Summary



Page
27


The
Equality

Act means disabled people have rights when accessing goods and
services. Under the act, service providers cannot treat a disabled person less
favourably

than someone else. In add
ition, service providers must make reasonable
adjustments to ensure a disabled person can use the service.

Being able to
park

is a key part of accessing services for many disabled people. If you
provide the services, you must provide well
-
designed, accessi
ble parking for the use of
disabled people.

Providing the parking is not enough. You also have an obligation to ensure that the
spaces are free to be used by disabled people and not abused by others. If you do not
take steps to prevent abuse, you may be ch
allenged under the
Equality

Act for not
taking reasonable steps to enable disabled people to use your service.


Section
6

Dealing with abandoned vehicles

6.1 Introduction

Operators who discover vehicles which they believe have been abandoned on private
land which they are managing need to be aware of how to deal with the situation.

Local councils have the primary responsibility for the removal of abandoned vehicles,
whether on private land or on the public highway. The Refuse Disposal (Amenity) Act
1978,

says:

Section 3 (1) “Where it appears to a local authority that a motor vehicle in that area is
abandoned without lawful authority on any land in the open air or on any other land
forming part of a highway, it shall be the duty of the authority, subject t
o the following
provisions of this section to remove the vehicle”.

Section 3 (2) says “Where it appears to a local authority that the land on which a motor
vehicle is abandoned as aforesaid is occupied by any person, the authority shall give
him notice tha
t they propose to remove the vehicle in pursuance of subsection one
above but shall not be entitled to remove it if he objects to the proposal within the
prescribed period”.

Section 4 says: “where a vehicle is removed in pursuance of section 3 above the
ap
propriate authorities shall be entitled to recover from any person responsible such
charges as may be prescribed in respect of the removal of the vehicle and the charges
ascertained by reference to a prescribed scale in respect of any period during which t
he
vehicle is in the custody of the authority.”



Page
28


6.2
Checking that a vehicle has been abandoned

Government advice is that there are a number of things that you can do to check if
vehicle has been abandoned before you contact the local council:



Are any of th
e tyres flat or have any of the wheels been removed?



Is there litter or a lot of leaves under the vehicle? This may mean that it hasn't
moved for some time.



Is the windscreen or any of the windows broken?



Does the vehicle have number plates?



Does the vehic
le contain items of waste like tyres, old newspapers or general
rubbish?



Have any parts like the bumper or seats or radio been removed or damaged?



Is there any graffiti on the vehicle?



Are there other wires hanging from the dashboard because the vehicle ha
s been
hotwired (driven without keys by connecting ignition wires together)?



You should also check if there is a tax disc on the vehicle and whether it
has
expired
. If possible, check with your neighbours or with local businesses to see if
anyone knows any
thing about the ownership of the vehicle.

You can report an abandoned vehicle to your local council using the direct.gov.uk
website

More advice on dealing with abandoned vehicles can be found on the Keep Britain Tidy
website.

Section
7

Identifying the driv
er

where the registered keeper claims
they

were

not

driving the vehicle

7.1
Introduction

The introduction of the Protection of Freedoms Act 2012
enables the private car park
operator to obtain any outstanding charges from the keeper of the vehicle, if the
keeper
is unable supply a serviceable name and address for the driver, if the parking incident
occurs in England or Wales.

You should be aware that this arrangement does not extend to Scotland or Northern
Ireland. Therefore when issuing
p
arking
c
harge
n
oti
ces for car parks in these countries,
or for issuing charges to registered keepers in these countries, you must ensure that
you adhere to the processes that you followed before the Protection of Freedoms Act
became enforceable.



Page
29


That is to say:

1.

The keeper of the vehicle is
not

liable for the parking charge, except in certain
circumstances where the Law of Agency may apply.

2.

The motorist is not able to use the Independent Appeals Service once they have
exhausted your appeals process.

There now foll
ows a number of questions and answers that may help you to understand
the concept of keeper liability:

Q: Are there obligations on the registered keeper to reveal the identity of the driver, if
the registered keeper contests that he was in fact, driving t
he vehicle?

A:
Because there is no specific legislation for parking on private land, there
are
differences of legal opinion

in Scotland and Northern Ireland

about whether a vehicle
keeper is required to supply information about who was actually the driver. There is an
argument to say that any electronic documents held by a third party (for example the
records of who the authorised drivers are for a company ve
hicle fleet, held by the
registered keeper) can be ordered to be disclosed to a civil court prior to proceedings
being issued. Alternatively the operator may be able to apply to the court to obtain
information from the registered keeper where the keeper ha
s become involved in the
wrongdoing by others. For example where the plaintiff (here the parking operator) has
been injured in some way by the act of the driver then an innocent third party (the
keeper) may be required to assist the plaintiff by identifyin
g the wrongdoer.

An example of where this has been applied effectively is the case of Norwich Pharmacal
Co. v Customs and Excise Commissioners. In this case, the owner of a patent knew
that infringing goods were entering the UK, but could not ascertain the
ir identity. The
Commissioners, in the course of performing their duties, had information that would
identify the imports. Also, they had unknowingly played a part in facilitating importation
of infringing goods. The House of Lords found that where a third

party had become
involved in unlawful conduct, they were under a duty to assist the person suffering
damage by giving them full information and disclosing the identity of wrongdoers. If the
third party bears expense in assisting compliance with an order,
the person seeking
assistance is bound to reimburse those expenses. That expense however would be
reflected in an award of damages against the ultimate tortfeasors, and this be recovered
after the final hearing.

This
process may

be expensive with no guaran
tee of success
, and the

costs of
an
innocent third
party may

have to be paid by the operator. The operator must also be
careful not to be in breach of the 2008 consumer protection regulations which prohibit
the use of aggressive behaviour such as harassmen
t, coercion or threatening language


Page
30


in attempting to obtain the details of the driver of the vehicle
(see Section 4 of the
Guide). The BPA’s practical advice is that operators should
assess

how strong the other
evidence of identity that they have access to

is by taking practical steps, before
considering whether to try and force the keeper to disclose the driver’s identity.
Ultimately the operator will have to prove that, on

the

Balance of Probabilities
, he is
suing the correct person if he sues the regist
ered keeper who he believes to be the
driver.

Operators should also note that this issue of driver contractual responsibility is different
from on
-
street parking by public authorities, where statute imposes a legal liability on
vehicle
owners
for parking a
nd other civil traffic offences. In those cases, the operator
acting for a local authority will be pursuing an unpaid debt against the registered keeper
under the statutory liability, not under a contract.

In a contractual parking situation the parking ti
cket debt is owed by the driver of the
vehicle. Unlike in the case of a ticket for speeding issued by the police (section 172 of
the Road traffic act 1988 places an obligation on a vehicle keeper to identify the driver)
there is no explicit legal duty on t
he keeper of the vehicle to identify who was driving it at
the time the parking ticket was issued.

Two possible approaches exist to overcome this problem, where the vehicle keeper
either fails to respond to correspondence or says he was not the driver but
gives no
information about who was driving.

The parking operator may be able to argue the driver was acting as an agent of the
keeper and that the debt is therefore owed by the keeper of the vehicle

under the Law
of Agency
. This argument may be effective w
here the vehicle concerned belongs to a
company and the driver has been using it as part of his employment.

Alternatively, the parking operator proceeds with a court case and bases his claim on
the argument that on the
Balance
of
Probabilities
the vehicle
keeper was in fact, the
driver.

The parking operator may be able to apply court rules to assist in taking the second
course of action. If the operator decides to issue a claim in the courts for payment of the
debt and the keeper puts in a
defence

that they

were not the driver and therefore is not
liable, the court may find that the defendant's pre
-
action conduct in failing to provide the
name of the driver has led to unnecessary costs, putting them at risk of incurring extra
expense if the court then finds
against them. However, this will be in the discretion of
the court and

such a

decision comes at a late stage in the claim recovery process.



Page
31


Section
8

Protecting vulnerable drivers when carrying out
immobilisation or removal

8.1 Introduction

The introduction of the Protection of Freedoms Act now makes it illegal to immobilise a
vehicle on any land in England and Wales where there is no lawful authority.
The BPA
Code of Practice sets out targets

for
Northern Ireland and where that lawful author
ity
exists
to

ensure that drivers who have had their vehicles immobilised or removed are
able to
gain
full access to them as soon as possible. There may however be some
circumstances where operators have to make choices about which driver to prioritise for

de
-
clamping or vehicle return after charges have been paid. There may also be
circumstances where operators should consider whether immobilisation or removal is
an appropriate remedy even though the driver has ignored signs and notices warning of
the risk

of such action.


‘Vulnerable’ drivers require special attention. This part of the guide looks at how
operators should behave towards this group and what priority actions they can take to
reduce or avoid causing the distress or danger which vulnerable driv
ers may suffer as a
result of an operator’s action. This section also sets out a risk assessment checklist for
operators to follow in order to comply with best practice.

8.2
Who are ‘vulnerable’ drivers?

1.

Drivers who are member of the defined group who by
their nature are seen to be
vulnerable.

2.

Anyone else who because of external circumstances may become at risk
because they don't have full access to their vehicle.

8.3
Who are members of the vulnerable drivers group?



Single women.



Women accompanied by young

children.



Young people below the age of 21.



Elderly people, whether on their own or as a couple.



People suffering from a disability.




People suffering from illness

8.4
Who can become vulnerable because of external circumstances?



Anyone who finds themselve
s without their vehicle in an area of high criminal
activity.



Page
32




Anyone experiencing extreme weather conditions when they are inadequately
dressed.



An individual who has insufficient funds to deal with the situation of being without
their vehicle unexpectedly
.



Any driver unfamiliar with the location who finds they do not have the use of their
vehicle during the hours of darkness.

8.5
What priority actions should operators take to remove or reduce the danger or
distress to a vulnerable driver?

Operators should
look to reduce or remove the risks to vulnerable drivers through the
following alternative actions.



Attending the vulnerable driver as speedily as possible.



Assisting the vulnerable driver.



Prioritising the return or de
-
immobilisation of the vulnerable dri
ver’s vehicle.



Imposing alternative sanctions (such as issuing a parking ticket) instead of
immobilisation or removal.



Accepting delayed or reduced payment if that addresses the particular source of
danger or distress.

8.6
Risk Assessment checklist

1.

Pre
-
enf
orcement action:



Is there evidence in the vehicle suggesting the driver may be vulnerable?

o

If there is such evidence, what steps can the operator take to
anticipate and mitigate the distress or danger their enforcement activity
will have on the driver?

o

Take alternative action where possible; immobilise rather than remove
the vehicle; relocate rather than remove the vehicle; attach a parking
charge (ticket) rather than immobilise the vehicle.

2.

Post enforcement action:



From evidence supplied by the driver (
for example over the phone) does the
driver appear to be vulnerable?

o

If driver appears to be vulnerable, what is the likelihood of distress
threat or danger to the driver now they have reduced or no access to
their vehicle?

o

How serious is the distress thre
at or danger to the vulnerable driver
now they have reduced or no access to their vehicle?



What external circumstances exist which may put the driver at risk or make
them vulnerable?



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33


o

If driver appears to be vulnerable, what is the likelihood of distress
th
reat or danger to the driver now they have reduced or no access to
their vehicle?

o

How serious is the distress threat or danger to the vulnerable driver
now they have reduced or no access to their vehicle?



Where it appears to an operative that a driver is v
ulnerable, they should
involve the operative’s management in making decisions.



What options are available to operators to mitigate the distress or danger to
the vulnerable driver?

o

Calling for assistance from operators colleagues.

o

Call police or ambulance t
o assist driver.

o

Calling the parents or relatives of the driver.




From the evidence obtained, what is the best alternative approach to take to
the vulnerable driver if any instead of the planned enforcement action?



Having chosen the best approach to take a
nd implemented the action, has
this reduced or removed the distress, threat or danger to the driver?

Section
9

Appropriate use of
Automatic Number Plate Recognition
(
ANPR
)

9.1 Introduction

The section of the guide covers best practice in relation to the
use of automatic number
plate recognition systems by private party operators, and in particular the procedures
they should put into place for handling the data they collect from the use of ANPR.

9.2
ANPR and Data Protection

Operators may not realise that t
he use of ANPR is covered by data protection rules. The
police however certainly regard ANPR data
1

as covered and the Information
Commissioner Office (ICO) has published an updated CCTV Code of Practice in 2008
in which they say: “this code provides good p
ractice advice for those involved in
operating CCTV and other devices which view images of individuals. It also covers
other information derived from those images that relates to individuals (for
example, vehicle registration marks)”.




1

see paragraph 3.4.1 Data Prot
ection Principles in their Practice Advice on the Management and Use of Automatic
Number Plate Recognition 2009, produced on behalf of the Association of Chief Police Officers by the National
Policing Improvement Agency.



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The Data Protection D
irective (Directive
95/46/EC)

defines “personal data” as “any
information relating to an identified or identifiable natural person ('data subject'); an
identifiable person is one who can be identified, directly or indirectly, in particular by
reference to
an identification number or to one or more factors…”

The
Data Protection Act 1998 (DPA)
is the UK law transposing the Data Protection
Directive and it defines personal data as data, “which relates to a living individual who
can be identified (a) from those

data or (b) from those data and other information, which
is in the possession of, or is likely to come into the possession of, the data controller”.

So it is clear that data captured by an ANPR system should be treated as “personal
data” under the
principles of the DPA and falls under the remit of the Information
Commissioner’s Office.

The ICO’s Code of practice is a set of recommendations based upon the legally
enforceable data protection principles set out in the DPA. This section of the BPA Guide

draws extensively upon the ICO’s Code of Practice.

The
Code of Practice

covers systems which can capture images of individuals or
information relating to individuals for any of the following purposes:



Seeing what an individual is doing.



Potentially taking

action relating to an individual such as handing the images over
to the police. Processing the data would fall under this heading.



Using the images in some other way that will affect the individual's privacy.

Most uses of CCTV by businesses will be covere
d by the DPA and by the ICO code of
practice.

There is additional regulation of what is treated as covert surveillance activities by the
law enforcement community. Covert surveillance is governed by the Regulation of
Investigatory Powers Act 2000 (RIPA). O
perators who are providing information to the
police specifically for covert surveillance should make themselves aware of the RIPA.
However the RIPA is outside the scope of the BPA Guide to Operators.


9.3
Assessing the Impact of ANPR on your parking opera
tion

In order to comply with the current best practice, parking operators must first decide
whether to use CCTV/ANPR by taking into account what benefits can be gained,
whether better solutions exist and what effect using such systems may have on


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individuals. This should be done as part of an impact assessment on people's privacy.
Such an assessment should look at whether the system is justified in all the
circumstances, and if it is justified how it should be operated in practice.

Operators should

as part of a privacy impact assessment ask themselves:



What organisation will be using the images and who will take responsibility under
the DPA?



What is the purpose for using the system? What problems it is meant to
address?



What are the benefits to be g
ained from its use?



Can this system deliver these benefits?



Can less privacy intrusive solutions achieve the same objectives?



What future demand may arise for wider use of images, and how will you
address this?



What are the views of those who will be unde
r surveillance?



What could you do to minimise intrusion of those that may be monitored?

When the system will be operated by or on behalf of a public authority (such as a
university or hospital with a private car park) the authority will also need to consid
er
human rights issues, and in particular the application of Article 8 of the European
Convention on Human Rights. This is concerned with the right to respect for private and
family life and would include questions such as:



Is the proposed system establish
ed on a proper legal basis and operated in
accordance with the law?



Is it justified in the circumstances?



Is it proportionate to the problem it is designed to deal with?

If the answers to such questions would be No, then it would not be appropriate to use
the CCTV/ANPR system.

9.4
Administering your ANPR system

Operators who put in place a CCTV/ANPR system must ensure it is effectively
administered. This is essentially a question of ensuring the personal information that is


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collected is handled appropriately. Operators should nominate an individual who has
respon
sibility for the control of the images, decide what is to be recorded, how the
images should be used and who they may be disclosed to. The operator (not the
individuals tasked with dealing with the data) will be treated as the data controller and
will have

a legal responsibility for compliance with the DPA.

Questions that operators should ask themselves under this heading include:



Who has responsibility for control of images and making decisions on how these
can be used?



Has the operator notified the Infor
mation Commissioner's
Office
that they are a
data controller (and paid the notification fee)? Does the notification cover the
purposes for which the images are used and the disclosures that will be made?



If anyone outside the operator’s organisation is pro
viding processing services, for
example by editing or enhancing images, is a written contract in place with
clearly defined responsibilities?

Operators have a broad responsibility to put in place clear procedures to determine how
the system will be used. T
his means:



Identifying clearly defined and specific purposes for the use of the images and
communicating those purposes to the individuals who operate the system.



Documenting clearly these procedures based on the code of practice on the
handling of images.

These procedures could include guidance on disclosing the
images and keeping a record of disclosures.



Nominating an individual responsible for ensuring procedures are followed.



Ensuring proactive checks or audits are carried out on a regular basis to ensu
re
the procedures are being complied with.

These procedures should be regularly reviewed in order to justify the continued use of
the CCTV/ANPR system. The Information Commissioner needs to be notified on an
annual basis, and the annual return may be the a
ppropriate time to consider the
continuing use of the system.

-

The ICO Code of Practice sets out some rules of selecting, locating and using
cameras. When number plate only information is being captured the key question
is going to be “does the system produ
ce images of sufficient quality for the
purposes of accurately recording the vehicle registration mark?” Systems need


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to be able to identify vehicle number plates accurately. The ICO code also
considers procedures for looking after recorded material and u
sing the images. It
highlights that recorded material must be stored in a way that maintains the
integrity of the image and then restricting access only to those people who need
to have access. Once the reason that the recorded image was made is complete,
the images should be deleted

(be aware however that DVLA requires that
companies must retain evidence sufficient to demonstrate that their data access
is in line with
their

requirements for a period of two years
)
.

.

9.5
Disclosure of ANPR Data

The ICO code

makes some important points about the disclosure of images from CCTV
and ANPR systems. Disclosure must be controlled, and consistent with the purpose for
which the system was established. It is not appropriate to disclose images for unrelated
purposes. Ho
wever, it is acceptable to disclose images to law enforcement agencies,
even if the system was not created for that purpose, if not doing so would be likely to
prejudice the prevention and detection of crime. However, there is no obligation on
operators to

do this. Other requests for images should be approached with care as
disclosure may be unfair to the individuals concerned.

Questions you should ask
yourself are
:



Are arrangements in place to restrict disclosure of images in a way consistent
with the pur
poses for which the system was established?



Has clear guidance been given to the individuals who have to handle requests for
disclosure so that they understand the circumstances in which disclosure is
appropriate?

You should record the date of any disclosu
re along with details of who the images have
been provided to and why this information was required. It will be a matter of your
judgment about whether or not to disclose information recorded by CCTV/ANPR
system. You have the discretion to refuse such requ
ests, unless there is there is a legal
obligation such as a court order, or individuals who have been photographed have
information access rights (see below).

9.6
Retention of CCTV/ANPR images

There is no specific minimum or maximum retention period which
applies to information
recorded by CCTV/ANPR systems. Instead, the retention period should reflect the
operator’s own purposes for recording the images in the first place. You should not keep


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images for longer than necessary to meet your own purposes and b
ear in mind the time
limits imposed by the AOS Code on processing claims for unpaid charges.

Questions you should ask
yourself are
:



Have you decided on the shortest period that you need to retain the images,
based upon your purpose for recording them in th
e first place?



Have you documented your image retention policy and is it understood by those
who have to operate the system?




Have you put in place measures to delete images permanently through secure
methods at the end of the period? Are you undertaking
systematic checks to
ensure that your retention period procedure is being complied with?

9.7
Other operator responsibilities

9.7.1
Informing people about your CCTV/ANPR system

You must let people know that they are in an area where surveillance is being ca
rried